Litigation

Court Nixes Two KY Rules on Judicial Campaigning

By Peter Hardin

Judicial candidates in Kentucky have gotten a green light to solicit campaign dollars and seek office with advertised political party affiliations, as a result of a decision from the Cincinnati-based 6th U.S. Circuit Court of Appeals.

According to an Associated Press article, Judge Jeffrey Sutton (photo at right) wrote the decision for a three-judge panel.

The panel found that Kentucky’s prohibitions on judicial candidates soliciting campaign money, and on advertising their party affiliations, were written in a way that violates free-speech protections under the First Amendment.

At the same time, the panel sent back another issue to a lower court for further consideration. That issue involves whether judicial candidates can be barred from making statements that are perceived to commit them to rule a certain way on a case or controversy.

Here is an excerpt from the opinion:

“There is room for debate about whether the election of state court judges is a good idea or a bad one.  Yet there is no room for debate that, if a State opts to select its judges through popular elections, it must comply with the First Amendment in doing so.

“In this case, we have upheld some components of Kentucky?s Code of Judicial Conduct, invalidated others and sought clarification of still one other provision. Through it all, no one should lose sight of the reality that a judicial candidate?s right to engage in certain types of speech says nothing about the desirability of that speech.”

The appeals court ruled on a challenge brought by Marcus Carey, a former Republican Party official who ran unsuccessfully in 2006 for the state Supreme Court.

The fundraising rule at issue barred a judicial candidate from soliciting campaign funds but permitted a campaign committee that he set up to do so. The party affiliation rule barred a judicial candidate from identifying himself as a political party member in advertising or when speaking to a gathering, but permitted a candidate to disclose it in response to a direct question from an individual.

“While we do not question Kentucky’s right to select judges through popular elections,” the appeals panel said, “the Commonwealth cannot exempt itself from the demands of the First Amendment in the process.”

James Bopp, a lawyer who represented the plaintiff in the case, said he believed the ruling would bring judicial campaigns into conformance with other political contests.

Full post as published by The Gavel on July 13, 2010 (boomark / email).